Convicted Man Wins New Trial Due To Note On Indictment

July 3, 1986|By Jean Dubail, Staff Writer

A Wilton Manors man convicted in 1985 of lewd assault on his girlfriend`s daughter deserves a new trial because of five words stamped on the back of his indictment, the 4th District Court of Appeals ruled Wednesday.

The words are a court clerk`s note that Michael Danford, now serving a three- year prison sentence, ``stood mute in open court`` -- meaning he refused during his arraignment to answer the three charges against him.

The appeals court found this ``an impermissible written comment on the defendant`s exercise of his constitutional right to remain silent.``

Since it appeared on a document given to the jury for its deliberations, the jury`s verdict was tainted, the court ruled.

The court based its decision on the Florida Rules of Criminal Procedure, which prohibit prosecutors from commenting on a defendant`s failure to testify in his own behalf. Earlier court decisions have extended the prohibition to judges and to co-defendants` attorneys.

Danford`s attorney, Tatjana Ostapoff, said the reason for such caution is clear: Many people assume that defendants who remain silent have something to hide. Drawing attention to such silence can be harmful, she said.

``Any comment on the defendant`s right to remain silent is important, when the jury hears it,`` Ostapoff said. ``It`s really hard for people to ignore that.``

Defense attorneys are so mindful of this danger that they attempt during jury selection to weed out those who seem inclined to draw conclusions from a defendant`s refusal to testify, Ostapoff said.

``That`s something defense lawyers have to be real conscious of,`` she said.

Assistant Attorney General Richard Bartmon, who fought to uphold Danford`s conviction, said he may seek a rehearing on the issue.

``There`s no evidence that the jury saw this (note) or considered it,`` Bartmon said.

Danford originally was charged with three counts of sexual battery. The jury found him guilty of a lesser charge on one count and acquitted him of the other two.

The appeals court`s decision will not require Danford`s automatic release, both attorneys said. Ostapoff said Danford probably will remain in jail until a new trial is conducted.